[Senate Report 108-403]
[From the U.S. Government Publishing Office]
Calendar No. 794
108th Congress Report
SENATE
2d Session 108-403
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PROVIDING REFORMS AND RESOURCES TO THE BUREAU OF INDIAN AFFAIRS TO
IMPROVE THE FEDERAL ACKNOWLEDGEMENT PROCESS, AND FOR OTHER PURPOSES.
_______
November 10, 2004.--Ordered to be printed
Filed, under authority of the order of the Senate of October 11, 2004
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 297]
The Committee on Indian affairs to which was referred the
bill (S. 297) to provide reforms and resources to the Bureau of
Indian Affairs to improve the Federal acknowledgement process,
and for other purposes, having considered the same, reports
favorably thereon with an amendment in the nature of a
substitute and recommends that the bill (as amended) do pass.
PURPOSE
The primary purposes of S. 297, the Federal Acknowledgment
Process Reform Act of 2004, are: to ensure that in any case in
which the U.S. acknowledges an Indian tribe through an
administrative process, it does so with a consistent legal,
factual, and historical basis; to require the U.S. to use clear
and consistent standards in its review of documented petitions
for acknowledgment; and to clarify evidentiary standards and
expedite the administrative review process for such petitions
by establishing deadlines for decisions and authorizing
sufficient resources to the U.S. to process petitions.
BACKGROUND
A. Federal Acknowledgment of Indian Tribes
By recognizing an Indian group as an Indian tribe, the U.S.
acknowledges the tribe's sovereign status and the existence of
a formal government-to-government relationship between itself
and the tribe.
Once a group is acknowledged as a tribe, it may avail
itself of Federal assistance, services and programs that are
enacted for the benefit of Indian tribes and their members.
In addition, the tribe is entitled to the enjoyment of all
the privileges and immunities that all Federally-recognized
tribes enjoy.
Throughout its history and at various times, the U.S. has
extended recognition to Indian tribes through treaties, by
Federal statute, or through administrative decisions by the
Executive branch.
The U.S. Department of the Interior has been granted broad
authority pursuant to 25 U.S.C. Sec. 2 to handle Indian
affairs, including the function of tribal recognition, and it,
in turn, has delegated the authority for the review of
petitions submitted by tribal groups seeking Federally-
recognized status to the Office of Federal Acknowledgment (OFA)
\1\ within the Bureau of Indian Affairs (BIA). The regulations
for the Federal Acknowledgment Process (FAP) are contained at
25 C.F.R. Part 83.
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\1\ Formerly known as the Branch of Acknowledgment Research (BAR).
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B. Federal Acknowledgment Regulations
The regulations setting forth the criteria applicable to
assess whether a tribe is entitled to Federal acknowledgment
were first promulgated in 1978,\2\ and have remained
essentially unchanged since then, with the exception of certain
revisions clarifying the evidence needed to support a
recognition petition (1994),\3\ updated guidelines on the
process (1997), and notices articulating BIA's internal
processing procedures (2000).\4\
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\2\ 43 Fed. Reg. 39361 (Sept. 5, 1978).
\3\ 59 Fed. Reg. 9280 (Feb. 25, 1994).
\4\ 65 Fed. Reg. 7052 (Feb. 11, 2000).
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The BIA regulations establish seven mandatory criteria--
each of which must be met before a group can attain Federally-
recognized status. These criteria are:
A. The petitioner has been identified as an American Indian
entity on a substantially continuous basis since 1900.
B. A predominant portion of the petitioning group comprises
a distinct community and has existed as a community from
historical times until the present.
C. The petitioner has maintained political influence or
authority over its members as an autonomous entity from
historical times until the present.
D. The group must provide a copy of its present governing
documents and membership criteria.
E. The petitioner's membership consists of individuals who
descend from a historical Indian tribe or tribes, which
combined and functioned as a single autonomous unit.
F. The membership of the petitioning group is composed
principally of persons who are not members of any acknowledged
North American Indian tribe.
G. Neither the petitioner nor its members are the subject
of congressional legislation that has expressly terminated or
forbidden recognition.
An Indian group seeking recognition must demonstrate that
its members are related genealogically to one another and that
they have existed as ``a distinct community . . . [and that the
tribe] has maintained political influence or authority over its
members . . . from historical times until the present.'' \5\
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\5\ See 25 C.F.R. 83.7.
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The technical staff within OFA consists of anthropologists,
genealogists, and historians, and this staff reviews the
petition and submitted documents, provides technical review and
assistance to the petitioner, and, with concurrence of the
petitioner, determines when the petition is ready for active
consideration.
C. The General Accounting Office Report
The General Accounting Office (``GAO'') prepared a report
in November, 2001,\6\ which found that as of 2001 the OFA has
received 250 petitions for recognition but only 55 contain
sufficient documentation to allow them to be considered and
reviewed by OFA staff.
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\6\ INDIAN ISSUES: Improvements Needed in Tribal Recognition
Process, U.S. General Accounting Office, Nov. 2001.
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For these documented petitions, BIA has finalized 29
decisions, 14 resulting in the recognition of the petitioning
tribe, and 15 denying recognition. The GAO report also
indicates that it may take up to 15 years to resolve petitions
currently awaiting active consideration based on the OFA's past
record of issuing final determinations--even though the
regulations establishing the process assume approximately two
years from the point of active consideration to final
decision.\7\
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\7\ Id. at 15-16.
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The GAO report chronicles the increase in the workload of
the OFA while noting the decrease in resources available to
address these issues. BIA staff have reported that the
petitions which are under review are becoming more detailed and
complex as petitioners and interested parties commit more
resources to the process, often resulting in massive amounts of
documentation submitted by the petitioner and interested
parties.
D. Discussion During the 107th Congress
During the 107th Congress, several bills were introduced
including S. 1392 \8\ and S. 1393 \9\ and referred to the
Committee on Indian Affairs for further consideration.
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\8\ See S. 1392, 107th Cong. (2002).
\9\ See S. 1393, 107th Cong. (2002).
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These bills primarily sought to provide more resources for
all participants in the FAP, particularly for local governments
that have or may have an interest in a petition submitted to
the OFA.
For instance, S. 1392 would have provided a significantly
changed ``burden of proof''--the ``more likely than not''
standard--and required that a petitioner meet this new
standard--a standard against which the OFA's recommendations
would be measured. This burden of proof is commonly required in
civil adjudicatory proceedings. S. 1392 would have also
provided formal, on-the-record administrative adjudicatory
hearings, where that burden of proof would be tested.
At a hearing held on September 17, 2002, the BIA strongly
opposed both S. 1392 and S. 1393.\10\ The BIA also opposed any
attempts to alter the criteria used to analyze petitions,
including significant changes to the types of evidence and
burden of proof required.
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\10\ See Hearing on S. 1392, to Establish Procedures for the Bureau
of Indian Affairs of the Department of the Interior with respect to
Tribal Recognition, and S. 1393, to Provide Grants to Ensure Full and
Fair Participation in Certain Decisionmaking Processes at the Bureau of
Indian Affairs, Before the Senate Committee on Indian Affairs, S. Hrg.
107-775, 107th Cong. at p. 43 (2002) (Testimony of Aurene M. Martin,
Deputy Assistant Secretary, Indian Affairs, Department of the
Interior).
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E. Introduction of S. 297
For years, FAP reform has occupied significant time and
attention of the Committee. S. 297 was drafted after careful
analysis of the various bills and amendments offered and the
hearings held during the 107th Congress and previous
congresses. These proposals and discussions offered a number of
different perspectives on what reforms to the FAP were
necessary and proper. The common thread of these views was that
the FAP needed greater transparency, consistency and integrity,
as well as additional resources in the form of additional
funding and technical expertise.
S. 297 was introduced to increase the transparency,
consistency and integrity of the acknowledgment process, as
well as augment resources available to the OFA. The bill
provides:
1. A statutory basis for the acknowledgment criteria
that have been used by the OFA since 1978;
2. Additional and independent resources to the
Assistant Secretary-Indian Affairs for research,
analysis, and peer review of petitions;
3. Additional resources into the process by inviting
academic and research institutions to participate; and,
4. Much-needed discipline into the mechanics of the
process by requiring more effective notice and
information to interested parties to the process.
F. April 21, 2004, Legislative Hearing
A legislative hearing on S. 297 was held on April 21, 2004.
In preparation for that hearing the Congressional Research
Service prepared a memorandum indicating that as of 2004, the
OFA has received 294 petitions for recognition but only 57 have
sufficient documentation to enable them to be considered and
reviewed by OFA staff.
For these completed petitions, BIA has finalized 35
decisions, 16 recognizing a tribe and 19 denying recognition,
with 3 decisions under appeals to the Interior Board of Indian
Appeals. Of the remaining 22 petitions, 9 decisions are under
active consideration--of which 4 decisions are pending Final
Determinations; and 13 decisions are ready awaiting active
consideration.
At the April 21 hearing, the BIA testified that it was
supportive of a more timely decision-making process, but
expressed concern that the factual basis required to render a
favorable decision should not be diluted. The BIA also
indicated concern over narrowing the role of interested
parties.
In addition to the current BIA officials, two former
Assistant Secretaries-Indian Affairs (AS-IA) testified.\11\ The
overarching theme of their testimony pointed to three problems
in the current administrative process:
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\11\ See Hearing on S. 297, the Federal Acknowledgment Process
Reform Act of 2003, Before the Senate Committee on Indian Affairs, S.
Hrg. 108-534, 108th Cong. P. 52-56 (2004) (Testimony of Neal McCaleb,
former Assistant Secretary, Indian Affairs, Department of the Interior
(2001-3, Administration of President George W. Bush); and Testimony of
Kevin Gover, former Assistant Secretary, Indian Affairs, Department of
the Interior (1997-2000, Administration of President William J.
Clinton)).
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1. The length of time and duplicative research
required of petitioners to participate in the process
has slowed the process considerably;
2. The exclusive reliance of the AS-IA on the OFA
staff, due to the complexity and volume of research
required of petitioners resulted in unnecessary
friction and perceived irrationality in recognition
decisions; and
3. The extent, frequency, and duplicative nature of
FOIA requests to the BIA for documents submitted to or
accumulated by the BIA pursuant to petitions resulted
in a ``churning'' of document submissions and re-
distributions by way of FOIA requests; this churning,
in turn, has resulted in a diversion of key, technical
staff from their intended roles as analysts.
Both former AS-IAs concurred that streamlining the process
and using outside and independent resources as provided in S.
297 would greatly improve the timeliness and quality of the FAP
decisions.
The final witness to appear at the April 21 hearing, a
traditional New Mexico Pueblo that first petitioned for
acknowledgment in 1971, testified that it had appeared before
the Committee four years earlier. At that time the Pueblo's
petition was seventh on the OFA's waiting list; and its
petition is still seventh on the list four years later.\12\
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\12\ See id. at p. 51 (Testimony of Edward Roybal II, Governor,
Piro Manso Tiwa Indian tribe).
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STATEMENT OF POLICY
It is a long and well established principle of Federal
Indian law, expressed in the U.S. Constitution, reflected in
Federal statutes, and articulated by the Supreme Court in
numerous decisions, that the U.S. has a special political
relationship and a trust responsibility to Indian tribes. This
special political relationship, or government-to-government
relationship, and trust responsibility extends to recognition
of Indian tribes that currently do not have, but are deserving
of, the special government-to-government relationship between
the Federal government and Indian tribes.
The government-to-government relationship has been extended
by treaties, Federal statutes, and through administrative
decisions by the Executive branch. When Indian tribes are
acknowledged, fulfillment of the trust responsibility
necessitates timely review of petitions, consistent and fair
criteria, and a process that is transparent and fundamentally
fair.
Fundamental fairness dictates that the long history of
Federal-tribal relations and widely shifting Federal policies
must be taken into account when petitions for acknowledgment
are considered.
AN OVERVIEW OF THE PROVISIONS OF S. 297
S. 297, as approved by the Committee, provides a statutory
framework for the United States to acknowledge Indian tribes
through an administrative process with an informed and well-
researched basis for making such decisions. It further provides
that the administrative process have integrity and be conducted
in a timely, fair, consistent and transparent manner.
A. Criteria for Recognition
The current FAP regulations listed above provide that each
petitioner must meet mandatory criteria that, if proven,
provide the basis for a decision by the BIA that such
petitioner is an existing Indian tribe. S. 297 provides
statutory codification to those regulatory criteria, and
provides substantive guidelines to OFA, petitioners, and
interested parties regarding probative evidence meeting the
criteria.
Essentially, if proven, these criteria demonstrate that the
members of a tribe are related genealogically to one another
and that they, as a tribe, have existed as a distinct community
and that the tribe has maintained political influence or
authority over its members from historical times until the
present.
The S. 297 Criteria. Section 5 of S. 297 requires that a
petition for acknowledgment contain detailed, specific evidence
of seven factors, or criteria. These criteria are practically
identical to the criteria mandated in 25 C.F.R. Part 83.
The first criteria required by S. 297 is that the
petitioner establish that it has been identified as an Indian
entity in the United States on a ``substantially continuous
basis''.\13\ This corresponds to the existing FAP criteria
``A'' listed above.
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\13\ See S. 297 Sec. 5(b) (1).
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The second criteria required by S. 297 is that the
petitioner establish that it comprises a ``community distinct
from the communities surrounding that community'' and has so
existed throughout the historical period.\14\ This corresponds
to the existing FAP criteria ``B'' listed above.
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\14\ See Sec. 5(c)(1).
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The third criteria required by S. 297 is that the
petitioner establish that it has maintained political influence
or authority over its members throughout the historical
period--essentially that the entity has been politically
autonomous.\15\ This corresponds to the existing FAP criteria
``C'' listed above.
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\15\ See Sec. 5(d)(1).
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The fourth criteria required by S. 297 is that the
petitioner provide, with its petition, a copy of the group's
governing document.\16\ The governing document must include a
description of the criteria for membership in the group and the
governing procedures of the entity. This corresponds to the
existing FAP criteria ``D'' listed above.
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\16\ See Sec. 5(e)(1).
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The fifth criteria required by S. 297 is that the
petitioner provide, with its petition, a list of all members
and a description of the methods used in preparing the
list.\17\ The entity's membership list must consist of
descendants of an Indian group, or Indian groups that were
combined and functioned as a single autonomous entity, that
existed during the historical period. This corresponds to the
existing FAP criteria ``E'' listed above.
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\17\ See Sec. 5(f)(1).
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In addition to the five specific criteria required by S.
297, certain groups or entities are ineligible to participate
in the FAP.\18\ These ineligible groups or entities include:
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\18\ See Sec. 4(b)(2).
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Tribes already recognized;
Groups, political factions, or communities
that separated from a recognized tribe, unless that
group, faction or community has functioned autonomously
throughout the historical period;
Groups that, before enactment of this Act,
petitioned for and were denied or refused
acknowledgment based on the merits of the petition; and
Any group whose relationship with the
Federal government was expressly terminated.
The exclusion of these groups or entities substantively
correspond directly to the existing FAP criteria ``F'' and
``G'' listed above.
B. The Acknowledgment Process
Letter of Intent. Pursuant to the framework established in
S. 297, a petitioner initiates the acknowledgment process by
submitting a letter of intent to the BIA that provides
relevant, practical information about the petitioner. The
letter of intent will provide the BIA and AS-IA with sufficient
information to determine which persons or entities qualify as
interested parties. Within 90 days of receipt of the letter the
BIA must notify the petitioner and interested parties of the
letter and whether the letter reasonably identifies the Indian
group.
Requirements and Evidence. On or after the date that an
Indian group seeking acknowledgment files its letter of intent,
it must file a petition with evidence that demonstrates its
existence as an Indian tribe. The evidence must show with a
``reasonable likelihood'' that each required criteria has been
established by the petitioner.
It is the Committee's intent that the evidentiary standard
``reasonable likelihood'' be considered met if the AS-IA finds
that it is more likely than not that evidence presented
demonstrates the establishment of a particular criterion. This
standard is the most commonly used civil adjudicatory
evidentiary standard. The Committee finds that conclusive proof
was never intended to be the evidentiary standard, and that the
use of reasonable likelihood in this context is appropriate.
Documented Petitions and Scheduling. Not later than 30 days
after a documented petition is submitted to the BIA, the AS-IA
must publish in the Federal Register notice of the receipt of
the petition. This notice will include pertinent information
for the public, including the name, location, and identifying
information for the petitioner; locations at which a copy of
the petition and related submissions may beexamined by the
public; and procedures by which an interested party can submit its
evidence or be kept informed of actions affecting the petition.
Not later than 60 days after publication in the Federal
Register of the notice of petition, the AS-IA is to consult
with the petitioner and interested parties on a schedule for
submission of evidence and arguments and publication of the AS-
IA's proposed findings with respect to the petition. The
schedule should provide a reasonable time frame for all parties
involved, including the AS-IA, to review the petition, submit
evidence, and make arguments and counterarguments.
Not later than 360 days after receipt of the documented
petition the AS-IA must publish in the Federal Register his
proposed determination, and his proposed findings supporting
that determination, as to whether the petitioner is entitled to
acknowledgment. If the AS-IA finds good cause, the publication
date may be extended for up to 180 days.
The Committee acknowledges that Sec. 4(d) of S. 297 places
responsibility for improved discipline on all parties,
including the OFA and AS-IA, to establish a schedule and meet
the deadlines imposed. It is, however, the considered opinion
of the Committee that increasing discipline in this way
ultimately insures a fairer and more timely review process. All
parties have an incentive to avoid dilatory tactics and
contribute to a more fact-based dialogue. In pursuit of this
goal, the Committee strongly encourages the AS-IA to strictly
enforce the time lines provided in S. 297.
The Committee also notes that Sec. 6 of S. 297 provides
significant new resources to the BIA through the Independent
Review and Advisory Board and the Federal Acknowledgment
Research Pilot Project. These new resources will significantly
expand the capacity of the OFA to review petitions. The
Committee strongly encourages the BIA to use these resources
upon passage of this Act.
Lack of Evidence Caused by Past Official Federal or State
Government Actions. S. 297 provides that, if the AS-IA
determines that evidence necessary to prove or disprove a
criterion is lacking due to any official or unofficial act of
the Federal government or a state government, the AS-IA shall
not make that lack of evidence the basis for a determination to
not acknowledge a petitioner. It is the intent of the Committee
that an Indian group should not be prevented from re-
establishing its government-to-government relationship with the
Federal government due to sanctioned or unsanctioned acts of
government agents committed pursuant to ill-conceived and now
repudiated policies.
Final Determination. After the proposed findings are
published, the parties have ample opportunity to respond to the
determination and proposed findings. The AS-IA has up to 360
days after publication to issue a final determination. The
final determination is to include all supporting facts and
conclusions of law.
If the final determination is made to acknowledge the
petitioner, the AS-IA must notify the petitioner and interested
parties, provide them a copy of the final determination, and,
not later than 7 days after notifying the parties, publish a
notice in the Federal Register of the final determination of
acknowledgment.
Judicial Review. If the final determination is made to
decline to acknowledge the petitioner, the petitioner may, not
later than 60 days after publication of the notice of final
determination, seek judicial review in the Federal District
Court for the District of Columbia. This judicial review does
not prejudice the rights of any person to make a challenge
pursuant to the Administrative Procedures Act, or other
applicable law.
It is the intent of the Committee that, in reviewing the
actions and decisions of the BIA, consistent with longstanding
Federal court precedent and Federal policy regarding
interpretation of treaties and Acts of Congress, the Federal
courts should construe this Act liberally in favor of the
Indian group or tribe seeking judicial review.
C. Additional Resources
Independent Review and Advisory Board. A significant new
resource provided to the AS-IA in Sec. 6(a) of S. 297 is the
Independent Review and Advisory Board (the ``Board''). The
Board, which is appointed by the AS-IA, is composed of
individuals with the same scientific disciplinary expertise as
the staff of the OFA--anthropology, genealogy, history and
jurisprudence.
The Committee intends that the Board will provide the AS-IA
assistance at two critical junctures in the petition review
process. First, during the initial review process before
issuance of proposed findings, the Board will be available to
the AS-IA if:
a petition or other evidentiary submission
raises unique issues or matters of first impression; or
the AS-IA is unable to determine whether
sufficient evidence has been provided to establish one
or more criteria.
In these instances, the AS-IA may request an opinion from
the Board with respect to that petition.
After the issuance of proposed findings relative to a
petition, but before the issuance of the final determination,
the AS-IA is required to obtain a review by the Board of the
proposed findings to determine whether a deficiency exists with
respect to one or more criteria. The review need not address
the entire petition, however, as the AS-IA has the discretion
to limit the scope of that review. Additionally, the Board may
also limit the scope of its review under this provision to the
evidence submitted or the proposed findings. The Board may also
extend the review to evidence submitted by all parties, request
that the AS-IA request additional submissions, and even
recommend that the AS-IA hold formal or informal administrative
proceedings to allow the Board to directly question and obtain
information from all parties, including interested parties.
It is the intent of the Committee that the Board provide
the AS-IA with a useful, secondary peer review. It is also the
considered opinion of the Committee that independent, secondary
peer review will enhance the transparency, integrity and
credibility of the FAP. The Committee also finds very
persuasive the testimony provided by two former AS-IAs,
praising the creation of anindependent advisory panel and
secondary peer review to assist the AS-IA.
Assistance to Petitioners and Interested Parties. During
hearings on the Federal acknowledgment process held by the
Committee over the past several years, several witnesses have
expressed concern about the rapidly escalating costs of
pursuing or opposing petitions and the need for economic
assistance by petitioners and local governments.
Often the only option available to financially destitute
petitioners is to find a business partner willing advance
financial resources and take the risk that a petition may be
unsuccessful. Many petitioners do not even have that option and
are simply unable to marshal the resources necessary to present
their petition in a cogent manner.
One solution to this problem is contained in S. 297, which
authorizes the AS-IA to provide grants to petitioners or
interested parties that demonstrate an economic need. To insure
that they will be able to effectively participate in the FAP,
at least one-half of the amounts appropriated for these grants
are reserved for petitioners.
Federal Acknowledgment Research Pilot Project. S. 297 also
authorizes an additional new resource for the AS-IA to use in
the FAP. The Federal Acknowledgment Research Pilot Project (the
``Pilot Project'') authorizes the AS-IA to access independent
research institutions to assist in researching, reviewing and
analyzing petitions. Within three years, the AS-IA will report
to Congress on the effectiveness of the Pilot Project.
Under the Pilot Project, the AS-IA, in consultation with
the Secretary of the Smithsonian Institution, will identify
independent research institutions that have the academic and
research capacity to efficiently and effectively assist in
reviewing petitions. These institutions will be invited to
submit proposals to participate in the Pilot Project, and if
approved by the AS-IA, will receive a grant to assist the
institution in participating in the Pilot Project.
Through the Pilot Project the institutions will provide the
AS-IA with additional resources for review of petitions and
conclusions and recommendations based on that review. The AS-IA
may then take any or all of those conclusions and
recommendations into consideration in making a determination.
The purpose of the Pilot Project is to access hitherto
untapped academic and research resources and bring them to bear
on the FAP. It is the intent of the Committee that the AS-IA
have wide discretion in implementing and utilizing the Pilot
Project, whether for additional petition review teams or for
secondary opinions of internal agency review. It is also the
considered opinion of the Committee that the Pilot Project will
enhance the timeliness, consistency and credibility of the FAP.
D. Efficient Public Access to Petitions
Over the past several years, the Committee has received
formal and informal comments regarding the impact that repeated
requests for information on petitions, pursuant to the Freedom
of Information Act (``FOIA''), have had on the OFA. At the
April 21, 2004, hearing the BIA testified that nearly forty
percent of the professional staff time was occupied with
responding to FOIA requests, diverting their time away from
reviewing petitions.\19\ According to the same testimony, many
of these requests are submitted even before a petitioner has
submitted a complete petition.
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\19\ See infra. at p. 50 (Testimony of Aurene Martin, Principal
Deputy Assistant Secretary, Indian Affairs, Department of the
Interior).
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It is the intent of the Committee that the public continue
to have access to the non-confidential information submitted to
the BIA, and thus be able to observe the agency's actions. Such
transparency is critical to public confidence in the FAP and
the BIA. The Committee strongly believes that such goals are
advanced by having a more efficient method for accessing that
information.
It is the considered opinion of the Committee that Sec. 7
of S. 297 accomplishes the goal of more efficient and
transparent information access, while at the same time
affording the professional staff the necessary time to more
efficiently and effectively review petitions and submissions.
E. Effects of Acknowledgment Decisions
It is the intent of the Committee in Sec. 8 of S. 297, that
each Indian tribe, acknowledged through the FAP, enter into its
government-to-government relationship with the Federal
government on an equal footing with all other Indian tribes.
The Committee acknowledges, however, that the BIA and the
Indian Health Service need adequate time to prepare their
required programmatic and budgetary adjustments, including
appropriations requests.
It is the further intent of the Committee that
acknowledgment of an Indian tribe, in and of itself, does not
reduce, eliminate, or in any way affect any legal or property
right of another Indian tribe or tribes.
F. Regulations
Authority is given to the Secretary in Sec. 9 of S. 297 to
promulgate regulations needed to implement this Act. Authority
is also given to the Secretary to maintain and continue the use
of those regulations in 25 C.F.R., Part 83, that are not
inconsistent with this Act. The Committee strongly encourages
the Secretary to utilize the authority to maintain the current
regulations where possible.
LEGISLATIVE HISTORY
S. 297 was introduced on February 4, 2003, by Senator
Campbell, and was referred to the Committee on Indian Affairs.
On April 21, 2004, the Committee held a legislative hearing
on S. 297. Witnesses at the hearing included Aurene Martin,
Principal Deputy Assistant Secretary-Indian Affairs, Department
of the Interior, Edward Roybal II, Governor of the Piro Manso
Tiwa Tribe, Neal McCaleb, former Assistant Secretary-Indian
Affairs, and Kevin Gover, former Assistant Secretary-Indian
Affairs.
While each of the witnesses expressed either suggestions
for different legislative language or concerns over particular
provisions in the bill, all of the witnesses were supportive of
the overall purposes and intent of S. 297. Many of those
suggestions and concerns were addressed in the substitute
amendment to the bill.
On June 16, 2004, at a business meeting duly noticed, the
Committee adopted a substitute amendment to S. 297 and, as
amended, favorably reported the bill for consideration by the
full Senate, with a recommendation that the Senate pass the
bill.
SECTION-BY-SECTION ANALYSIS OF THE ``FEDERAL ACKNOWLEDGMENT PROCESS
REFORM ACT OF 2003''
Sec. 1. Short Title
The Act may be cited as the ``Federal Acknowledgment
Process Reform Act of 2003.''
Sec. 2. Findings and Purposes
The Findings and Purposes relay the history of Federal and
Tribal relationships and explain that the Act is intended to
provide consistency, clarity and greater efficiency in the
Federal Acknowledgment Process.
Sec. 3. Definitions
The Act utilizes definitions that are already well accepted
definitions in the existing FAP regulations or other Federal
law dealing with Indian tribes.
Sec. 4. Acknowledgment Process
The Act provides a statutory basis for the procedures
whereby Indian groups are acknowledged as Tribes by the United
States. The procedures provided in the Act are very similar to
the current FAP procedures and include the following:
Letter of Intent. Petitioning groups must submit a letter
of intent. The required contents of this letter of intent are
expanded under the Act to require more information to enable
the Assistant Secretary-Indian Affairs (AS-IA) to provide a
more comprehensive notice to interested parties about the
petitioning group.
Petitions. A petitioning group must submit a petition that
establishes with reasonable likelihood that each criteria in
Section 5 is met. Some groups, such as splinter factions,
already-denied groups and legislatively terminated tribes, are
ineligible to submit petitions.
Notice of Receipt of Petition; Schedule. Within 30 days
after receiving a documented petition, the AS-IA must publish
notice of receipt of the petition in the Federal Register, with
information about the petitioner, where the petition can be
examined, and how interested parties can submit or obtain
information. Also, within 60 days the AS-IA must, in
consultation with the petitioner and interested parties,
establish a schedule for the submission of evidence and
arguments relating to the petition and when the proposed
findings will be ready for publication.
Review of Petitions. Generally the AS-IA must review and
consider the petition and other materials submitted by the
petitioner and interested parties, which must be noted in the
final determination. Within 360 days, the AS-IA must publish
the proposed findings in the Federal Register. The AS-IA may
extend, for good cause, the publication date for up to an
additional 180 days. Evidence from interested parties must be
considered and noted by the AS-IA in the proposed finding or
Final Determination.
Final Determination. After review of the petition by the
AS-IA, and after a petitioner and interested parties have had
an opportunity to respond, the AS-IA must issue a final
determination in writing with supporting facts and conclusions
of law.
Judicial Review. After publication of a notice of a final
determination, a petitioner has 60 days in which to seek review
in the District Court for the District of Columbia. This
judicial review does not prejudice the rights of any person to
make a challenge pursuant to the Administrative Procedures Act,
or other applicable law.
Sec. 5. Documented Petitions
Similar to current regulations, in its documented petition
a petitioner must establish the following mandatory criteria:
(1) an Indian identity; (2) that it comprises a distinct
community; (3) that it has exerted political influence or
authority over its members; (4) supply governing documents; and
(5) a list of members, with requirements showing descent.
Exceptions are made for Tribes that had treaties or Federal law
designating them as Tribes.
Sec. 6. Additional Resources
The Act contains several features not currently in the
acknowledgment regulations. The Act would provide the AS-IA
with an Independent Review and Advisory Board, to assist the
AS-IA with unique evidentiary questions and provide independent
peer review of acknowledgment determinations. The Act also
authorizes grants to petitioners and interested parties that
have a demonstrated need for assistance in participating in the
acknowledgment process. The Act also contains a pilot project
that draws upon the expertise of independent research
institutions capable of assisting the AS-IA in the review of
petitions. The pilot project authorizes grants to three
institutions with established capabilities to do such research
(typically academic or museum institutions).
Sec. 7. Inapplicability of FOIA
The Act would make the Freedom of Information Act
inapplicable to the acknowledgment process until petitions are
fully documented and the AS-IA has published a notice that the
petition is ready for review. The Act would also authorize the
Secretary of Interior to request assistance from the Attorney
General in responding to FOIA requests.
Sec. 8. Effect and Implementation of Decisions
Generally, acknowledgment of a Tribe under this Act will
not infringe on the rights of any other Tribes. Tribes
acknowledged under this Act will have all of the
responsibilities, obligations, privileges and immunities of
other Indian Tribes, and be eligible for Federal programs.
Sec. 9. Regulations
The Secretary is authorized to promulgate such regulations
as are necessary to carry out this Act. The Secretary may also
maintain in effect any current regulations that do not conflict
with the provisions of this Act.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
On June 16, 2004, the Committee, in an open business
session, considered S. 297 and approved a substitute amendment
to the bill, and ordered S. 297, as amended, favorably reported
to the full Senate with a recommendation that the bill do pass.
COST AND BUDGETARY CONSIDERATIONS
The cost estimate for S. 297 as calculated by the
Congressional Budget office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 30, 2004.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 297, the Federal
Acknowledgment Process Reform Act of 2004.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mike Waters.
Sincerely,
Elizabeth M. Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
S. 297--Federal Acknowledgment Process Reform Act of 2004
Summary: S. 297 would authorize the Department of the
Interior (DOI) to make various changes to the government's
process for acknowledging Indian tribes. The bill would:
Establish an Independent Review and Advisory
Board to assist with acknowledgment determinations,
Provide grants to petitioners and interested
parties to offset costs of the acknowledgment process,
Establish a Federal Acknowledgment Research
Pilot Project to help review petitions for recognition,
and
Exempt acknowledgment petitions from Freedom
of Information Act (FOIA) requests.
CBO estimates that implementing S. 297 would cost $44
million over the 2005-2009 period, subject to the appropriation
of the necessary amounts. Enacting the bill would not affect
direct spending or revenues.
S. 297 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no direct costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: CBO estimates
that implementing the changes authorized by S. 297 would cost
$44 million over the next five-year period, subject to
appropriation of the necessary amounts. The estimated budget
impact of this bill is shown in the following table. The costs
of this bill fall within budget function 450 (community and
regional development).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2005 2006 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Changes to Federal Tribal Acknowledgment Process:
Authorization Level............................................ 5 5 5 5 5
Estimated Outlays.............................................. 5 5 5 5 5
Grants for Petitioners & Interested Parties:
Estimated Authorization Level.................................. 2 2 2 2 2
Estimated Outlays.............................................. 1 2 2 2 2
Federal Acknowledgment Research Pilot Project:
Authorization Level............................................ 3 3 0 0 0
Estimated Outlays.............................................. 3 3 0 0 0
Reimbursement to Attorney General:
Authorization Level............................................ 1 1 1 1 0
Estimated Outlays.............................................. 1 1 1 1 0
Total Changes:
Estimated Authorization Level.................................. 11 11 8 8 7
Estimated Outlays.............................................. 10 11 8 8 7
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that S.
297 will be enacted near the beginning of fiscal year 2005 and
that outlays will follow historical patterns of similar
programs.
Changes to Federal Tribal Acknowledgment Process
Section 4 would authorize the appropriation of $5 million
for each fiscal year through 2013 to support DOI's tribal
acknowledgment process. The agency currently spends about $1
million a year on this activity. Assuming appropriation of the
specified amounts, CBO estimates this provision would cost $5
million annually and $25 million over the 2005-2009 period.
Grants for Petitioners and Interested Parties
Subsection 6(b) would authorize the appropriation of
amounts necessary to provide grants to offset costs incurred by
an Indian group or interested party in supporting or opposing a
petition for tribal recognition. Based on information from the
Bureau of Indian Affairs, CBO estimates that about 10 new
petitions will be filed for tribal recognition each year.
Assuming grants of approximately $200,000 per petition to
petitioners and interested parties, CBO estimates a total cost
of $1 million in 2005 and $2 million annually thereafter for an
estimated cost of $9 million over the 2005-2009 period.
Federal Acknowledgment Research Pilot Project
Section 6(c) would authorize the appropriation of $3
million for each of fiscal years 2004 through 2006 to provide
grants to institutions that participate in a pilot project
designed to help DOI review tribal recognition petitions. CBO
estimates that implementing this provision would cost $6
million over the 2005-2006 period, assuming appropriation of
the specified amounts.
Reimbursement to Attorney General
Section 7(c) would authorize the appropriation of $1
million to the Department of Justice (DOJ) for each of fiscal
years 2004 through 2008 for assistance with requests for
information relating to tribal recognition petitions. This
section would declare FOIA inapplicable to the recognition
process until DOI completes its review. It also would allow DOI
to request help from DOJ in responding to any FOIA requests
concerning tribal recognition. CBO estimates that implementing
this provision would cost $4 million over the 2005-2008 period,
assuming appropriation of the authorized funds.
Intergovernmental and private-sector impact: S. 297
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no direct costs on state,
local, or tribal governments. A decision by the federal
government to acknowledge an Indian tribe may significantly
affect neighboring communities, including other tribes, but CBO
cannot predict whether or how this legislation would affect the
outcome of any particular case. It is likely, however, to
shorten the process leading up to those decisions. The bill
could benefit affected local governments as well as tribes by
authorizing grants, which would be available both to tribes
seeking acknowledgment and to other interested parties.
Estimate prepared by: Federal Costs: Mike Waters. Impact on
State, Local, and Tribal Governments: Marjorie Miller. Impact
on the Private Sector: Selena Caldera.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill evaluate
the regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee has concluded that S. 297
will reduce regulatory or paperwork requirements and impacts.
EXECUTIVE COMMUNICATIONS
The Committee has received the following communication from
the Executive Branch regarding S. 297.
Testimony of Aurene Martin, Principal Deputy Assistant Secretary--
Indian Affairs
Good morning, Mr. Chairman and Members of the Committee. My
name is Aurene Martin, Principal Deputy Assistant Secretary--
Indian Affairs at the Department of the Interior. I am here
today to provide the Administration's testimony on S. 297, the
``Federal Acknowledgment Process Reform Act of 2003.''
The stated purposes of S. 297 include ensuring that when
the United States acknowledges a group as an Indian tribe, that
it does so with a consistent legal, factual and historical
basis, using clear and consistent standards. Another purpose is
to provide clear and consistent standards for the review of
documented petitions for acknowledgment. Finally it attempts to
clarify evidentiary standards and expedite the administrative
review process for petitions through establishing deadlines for
decisions and providing adequate resources to process
petitions.
While we agree with these goals, we do not believe S. 297
achieves them. The Department therefore, does not support S.
297. We are concerned that S. 297 would lower the standards for
acknowledgment and not allow interested entities the
opportunity to be involved in the process. We recognize the
interest of the Congress in the acknowledgment process, and are
willing to work with the Congress on legislative approaches to
the Federal acknowledgment process. We believe that any
legislation created should have standards at least as high as
those currently in effect so that the process is open,
transparent, timely, and equitable.
The Federal acknowledgment regulations, known as
``Procedures for Establishing that an American Indian Group
Exists as an Indian Tribe,'' 25 C.F.R. Part 83, govern the
Department's administrative process for determining which
groups are ``Indian tribes'' within the meaning of Federal law.
We believe these regulations provide a rigorous and thorough
process.
The Department's regulations are intended to apply to
groups that can establish a substantially continuous tribal
existence and, which have functioned as autonomous entities
throughout history until the present. See 25 C.F.R. Sections
83.3(a) and 83.7. When the Department acknowledges an Indian
tribe, it is acknowledging that an inherent sovereign continues
to exist.
The Department is not ``granting'' sovereign status or
powers to the group, nor creating a tribe made up of Indian
descendants. We believe this standard as provided in 25 C.F.R.
Part 83.3(a) needs to be maintained.
Under the Department's regulations, in order to meet this
standard petitioning groups must demonstrate that they meet
each of seven mandatory criteria. The petitioner must:
(1) demonstrate that it has been identified as an
American Indian entity on a substantially continuous
basis since 1900;
(2) show that a predominant portion of the
petitioning group comprises a distinct community and
has existed as a community from historical times until
the present;
(3) demonstrate that it has maintained political
influence or authority over its members as an
autonomous entity from historical times until the
present;
(4) provide a copy of the group's present governing
document including its membership criteria;
(5) demonstrate that its membership consists of
individuals who descend from the historical Indian
tribe or from historical Indian tribes that combined
and functioned as a single autonomous political entity
and provide a current membership list;
(6) show that the membership of the petitioning group
is composed principally of persons who are not members
of any acknowledged North American Indian tribe; and
(7) demonstrate that neither the petitioner nor its
members are the subject of congressional legislation
that has expressly terminated or forbidden the Federal
relationship.
A criterion is considered met if the available evidence
establishes a reasonable likelihood of the validity of the
facts relating to that criterion.
S. 297 would reduce the standards for acknowledgment by
requiring a showing of continued tribal existence only from
1900 to the present, rather than from first sustained contact
with Europeans as provided for in 83.7(b) and (c). Other
changes from the current regulatory standards would reduce the
standard for demonstrating tribal existence even after 1900.
This reduction in the standard deviates significantly from the
position of the Department, as stated in the regulations, that
the legal basis of Indian sovereignty is continuous political
and social existence pre-dating European settlement of the
territory that now constitutes the U.S. and extends without
break to the present. The standard set out in S. 297 makes it
more likely that groups without demonstrated tribal ancestry or
historical tribal connection may be acknowledged.
The bill also reduces the burden of producing evidence to
demonstrate continuous existence by creating an extensive list
of exceptions delineated in section 5(g) of S. 297. Section
5(g) would provide that if an Indian group demonstrates by a
reasonable likelihood that the group was, or is a successor in
interest to a party to one or more treaties, that group would
only have to show their continual existence from when the
government expressly denied them services, even if this
notification occurred only in the recent past. Under the
Department's regulations, the burden rests with the petitioning
group to show continuous existence; the bill shifts that burden
to the Department. For example, if a group requested services
from the government in 2000 and was denied those services,
under this scheme, the group would only have to submit
documentation from 2000 to the present. The Department would
then have to demonstrate the group did not exist as a tribe
prior to 2000.
The Department supports a more timely decision making
process, but does not believe that the factual basis of the
decisions should be sacrificed to issue more decisions. The
bill seeks to speed the process by narrowing the role of
interested parties in the administrative process and by
permitting only the petitioner to respond to proposed findings.
These limits on outside party involvement, however, lessen the
evidentiary basis of the decisions by not allowing interested
parties the opportunity to submit arguments and evidence to
rebut or support the proposed finding. Interested parties that
believe that their views and concerns are not being given due
consideration in the administrative process will likely
challenge the decisions in court, which makes the process more
costly and time consuming. The bill, however, appears to limit
these challenges by permitting only petitioners to sue over the
decisions. Specifically, the bill would provide for an appeal
of the final determination by the petitioner within 60 days in
the U.S. District Court for D.C.; however, it is unclear if
this bill precludes an appeal by interested parties under the
Administrative Procedure Act. Since Federal acknowledgment
decisions impact the groups seeking tribal status, the local
communities, states, and federally recognized tribes, the
process must be equitable.
With respect to deadlines and time lines, the Department is
interested in exploring some type of sunset provision. In fact,
in response to a November 2001, General Accounting Office (GAO)
report on the ``effectiveness and consistency of the tribal
recognition process'', the Department stated that we would
support a legislative sunset rule that would establish a clear
timeframe in which petitioners must submit final documented
petitions and supporting evidence.
The September 30, 2002, strategic plan and needs assessment
of the Assistant Secretary in response to the GAO report
outlined a number of changes that the Department is
implementing, and changes that Congress can implement, to speed
the process and to make it more equitable and transparent--
without changing the standard of continuous tribal existence.
The Secretary in April 2004 requested from the Assistant
Secretary--Indian Affairs a report outlining the progress on
the implementation of the strategic plan.
A number of changes have been made at the Department to
implement the strategies identified in the Department's
response to the GAO. First, previous acknowledgment decisions
have been scanned on CD-ROM and are available to the public.
Second, the use of Federal Acknowledgment Information Resource,
or FAIR, has expanded. FAIR is a database system linking images
of the documents in the record with the Department researchers'
comments. It includes a chronology of events from the documents
submitted and data extracts, and allows the tracking of persons
involved in the group and their activities. FAIR has been
praised by petitioners and interested parties alike for
providing timely access to the record and researchers'
analysis. The fact that this Administration has issued 14
decisions further documents the success of these efforts. The
bill does not address the improvements that the Department has
made.
conclusion
The Department believes that the acknowledgment of the
existence of an Indian tribe is a serious decision for the
Federal Government. It is of the utmost importance that
thorough and deliberate evaluations occur before the Department
acknowledges a group's tribal status, which carries significant
immunities and privileges, or denies a group Federal
acknowledgment as an Indian tribe.
When the Department acknowledges an Indian tribe, it
recognizes an inherent sovereign that has existed continuously
from historic times to the present. These decisions have
significant impacts on the petitioning group as well as on the
surrounding community. Therefore, these decisions must be based
on a thorough evaluation of the evidence using standards
generally accepted by the professional disciplines involved
with the process. The process must be open, transparent,
timely, and equitable.
Thank you for the opportunity to testify on S. 297 and the
Federal acknowledgment process. I will be happy to answer any
questions you may have.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law are
required to be made. The Committee has determined that there
are no changes to existing law made by S. 297.